Power Shift Down--The Lower Courts Count
Much of the debate swirling around the upcoming election focuses on the next President's power to shape the Supreme Court--but it would be a mistake to overlook the enormous impact the next President will have on the appellate courts as well. Each year the Supreme Court decides fewer cases. In the seventies and eighties, it routinely heard about 150 cases a year. The typical docket for the Rehnquist Court is less than 100.
This trend toward fewer Supreme Court rulings gives the appellate courts vastly more power. In fact, some experts call the appellate courts "regional Supreme Courts" because so often they become the forums of last resort for plaintiffs bringing civil rights, abortion and environmental litigation.
Appellate court appointments are rarely constrained by the kind of senatorial influence and patronage that frequently govern the selection of district court judges, so the President generally has a freer hand in making these appointments. Conservative activists have long been keenly aware of the importance of the appellate courts. Presidents Reagan and Bush both made it a priority to fill appellate court vacancies quickly, ultimately packing them with right-leaning judges whose agendas were to reverse years of progress on civil rights and the environment. Reagan and Bush appellate court appointees include such well-known ideologues as Robert Bork, Daniel Manion, Douglas Ginsburg, Frank Easterbrook and Alex Kozinski.
Because of the critical importance of the 179 federal appellate seats, Senate Republicans have deliberately delayed confirmation of nominees during the Clinton era. Of the thirty-four judges confirmed last year, only six were to courts of appeals. This year is unlikely to be better; ultraconservatives in the Senate will do everything possible to avoid filling the twenty-two appellate court vacancies until after the presidential election.
Consequently, even after seven years of Democratic rule, nine of the thirteen courts of appeals remain in the control of Republican appointees. Many of these judges, such as those on the Fourth and Seventh Circuits, have shown open hostility to civil rights, striking down such crucial protections as affirmative action, the Violence Against Women Act and the 1966 Miranda decision.
Judicial hostility to environmental protections is also common. In 1999 two panels of the Court of Appeals for the DC Circuit handed a victory to polluters, overturning longstanding EPA standards reducing the ozone that exacerbates lung disease and asthma. In that case, the Reagan-appointed judges adopted an argument set forth by a conservative lawyer, even though the argument ran contrary to sixty years of legal precedent.
Senate Republicans have also created a judiciary that is shamefully unrepresentative of the public it serves. It wasn't until this past summer that the number of African-American judges serving on the appellate courts reached the same level as when President Carter left office twenty years ago. More than half the country's circuit courts lacked either an African-American or a Latino jurist--or both--at the end of 1999. The conservative Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has never had an African-American judge, despite the fact that the region has the largest percentage of African-Americans in the general population of any circuit.
While North Carolina Senator Jesse Helms is notable for actively blocking the nominations of African-American judges to the Fourth Circuit Court, other GOP senators have contributed to the delays in appointments across the federal judiciary. In the past year the Senate set a record for the longest delay imposed on a nominee: Ninth Circuit Judge Richard Paez, a Hispanic-American, was forced to wait more than four years before the Senate finally scheduled a vote and confirmed him this year.
Unfortunately, in many ways the Clinton Administration has acquiesced in the Senate majority's crusade to strip away presidential appointment power. Clinton's strong desire to avoid confrontation over judicial appointments has led him to draw nominees from a limited pool, for the most part avoiding public interest lawyers and those in private practice with extensive pro bono experience. The regrettable result is that the Clinton Administration has failed to restore balance to the federal court system after twelve years of strongly ideological conservative appointments.
Americans deserve better. We count on federal judges to protect our civil rights, our environment and our most basic freedoms. The next President could well appoint fifty or more circuit judges. We need a President who will appoint federal judges--at all levels--who will advance protections against discrimination and environmental destruction. And we need a Senate that will stop using political gamesmanship to delay and block qualified judicial appointees.